Do you remember the anecdote about the discussion about whether QDOS was derived from CP/M and Gary Kildall, the author of CP/M, suggesting that someone should ask Bill Gates why function code 6 ends in a dollar sign? The author of QDOS, Tim Paterson, was deposed in litigation he recently initiated, and they asked him about that, and now history has its answer, as you can see from this snip from the defendants' motion for summary judgment:

Thirteen years before the Book was published, Mr. Kildall was quoted in a newspaper article as saying: "Ask Bill why function code 6 (in DOS) ends with a dollar sign . . . . No one in the world knows that but me." James Wallace & Jim Erickson, Bill Gates: Of Mind and Money, Seattle P-I, May 8, 1991... In his January 2007 deposition, Mr. Paterson conceded that function 9 was terminated with a "$" sign only "because that was what was in the manual. They published a manual; the manual said put a dollar sign at the end. So I followed the manual." Paterson Dep. at 130:11-131:9.

You may have read about this case, Paterson et al v. Little Brown and Company et al, in The Register. I did, and after reading some of the documents, I decided that for the sake of history, it would be worthwhile to put the docket's main filings up on Groklaw of case number 2:05-cv-01719-TSZ.

At issue in this case was a chapter in the book They Made America, by Sir Harold Evans and published in 2004 by Little Brown, that said this about Kildall: "Gary Kildall: He saw the future and made it work. He was the true founder of the personal computer revolution and the father of PC software." The book also stated that QDOS was a clone of CP/M.

Evans and his publisher got sued by Tim Paterson over it. A suit for defamation, no less, false light and invasion of privacy. You can read the plaintiff's position by reading the Complaint [PDF]. For the defendants' side, you can read the Motion for Summary Judgment [PDF]. The court has now ruled in favor of the defendants. While it is conceivable that there will be an appeal, at this point, this court has decided the history of DOS and Dr. Kildall's role in it. And the case is Exhibit A proving the theory that defamation lawsuits rarely are a good idea.

There is an interesting side story. Dr. Lee Hollaar was an expert for the plaintiff.
Here's part of what Hollaar told the court in his expert report:

9. In my opinion, the defendants have taken demonstrably-false statements and quotes from people without first-hand knowledge of the relationship between CP/M and QDOS, put them in a context that compounds their effect with respect to Mr. Paterson's work, and failed to subject the work for Mr. Kildall to the same standards, all to support the thesis of the chapter that Mr. Kildall was the "Edison of computers" who was "ripped off" in part by Mr. Patterson's illegal or immoral activities.

The defense then hired Gary Nutt as its expert to rebut Hollaar, and here's part of his own summary of his expert report:

A. Expert Report Summary

4. Dr. Gary Kildall created the first successful Operating System (OS) Control Program/Monitor (CPM) for a microprocessor.

5. CP/M defined a market that stimulated independent software development, inexpensive development platforms, and the proliferation of inexpensive application programs for inexpensive computers.

6. Dr. Kildall developed the Basic Input/Output System (BIOS) approach to designing small computer operating systems. This design was used in 86-DOS and its descendants.

7. At the time that Mr. Paterson developed the initial version of 86-DOS, he had no credentials for designing an OS, and used Dr. Kildalls CP/M design to direct the implementation of 86-DOS....

11. Sir Harold Evans' use of the term clone was qualified and accurately describes how 86-DOS compared to CP/M.

12. Mr. Paterson is unable to prove that 86-DOS did not copy algorithms, data structures, and other trade secrets and confidential information incorporated in the CP/M program.

The Court GRANTS Defendants’ Motion for Summary Judgment, docket no. 13, on each of Plaintiff’s claims. This case is dismissed.

The Register article explains the overview well. In granting their motion for summary judgment the judge explained his reasons for ruling as he did, and here is one of the fundamental ones -- truth is a complete defense to any defamation claim:

Summary judgment plays a “particularly important role” in defamation
cases:

Serious problems regarding the exercise of free speech and free press
guaranteed by the First Amendment are raised if unwarranted lawsuits
are allowed to proceed to trial. The chilling effect of the pendency of
such litigation can itself be sufficient to curtail the exercise of these
freedoms.

It is for the Court to determine whether a statement is capable of defamatory meaning.
Hoppe v. Hearst Corp., 53 Wn.App. 668, 672 (1989). “Defamatory meaning may not be
imputed to true statements.”Lee v. The Columbian, Inc., 64 Wn.App. 534, 538 (1991). Put
differently, the truth is an absolute defense to a claim of defamation.Ward v. Painters’
Local Union No. 300, 41 Wn.2d 859, 865 (1953).

[A] defamation defendant need not prove the literal truth of every
claimed defamatory statement. A defendant need only show that the
statement is substantially true or that the gist of the story, the portion
that carries the “sting,” is true.

The court carefully considered the book's claims and decided they were not actionable. In some cases, he found that the plaintiff had overstated matters. I haven't had time to read the documents yet carefully enough to even have a personal opinion on the computer history, except to say that the court has ruled as it has.

Personally, I think folks *should* build on each others' software and share and share alike, because software is knowledge, and shared knowledge is a good thing. That's why I'm a GPL girl myself. I know others disagree, but in any case, one thing I'm sure of: history has value in its own right. For that reason, I am providing the significant documents so historians will have them to work with.
Sir Harold Evans, in his deposition said, "History is a process of constant revision."

What I do have an opinion on is defamation lawsuits. They usually do backfire, just as this one has. Why? Because they're hard to prove, unless you can prove something was untrue, negative, and in the case of a public figure deliberately or negligently untrue. So all you accomplish is that more people hear about the very claims you wish had never seen the light of day. But there's another vital issue in this case, one that the court was sensitive to. I'd like to highlight footnote 13 in the motion for summary judgment:

13 Under the law of Washington, summary judgment is also designed to serve the important First Amendment goal of eliminating the chilling effect of unwarranted defamation litigation.... (The public interest is best served by expeditious disposition of cases raising First Amendment issues.).

Amen. And happily, the court agreed. Bottom line? People are sometimes too quick to sue:

The law of libel does not make actionable communications that are merely unflattering, annoying, irksome, or embarrassing, or that hurt[] only the plaintiffs feelings. 1 Robert D. Sack, Sack on Defamation § 2.4.1 (3rd ed. 2005). Additionally, [d]efamatory meaning may not be imputed to true statements.... The record shows that many of the statements at issue are indisputably true, supported by sworn and other statements by Mr. Paterson himself...

To capture all the fine points of the case, you will need to read the order in full. You can read an article by Dr. Kildall on the history of CP/M on this Digital Research page, if history interests you. Here, then, is the docket, with the main documents.

Docket Text: MINUTE ORDER SETTING TRIAL DATE AND RELATED DATES, AND DESIGNATING CASE FOR MEDIATION; Length of Trial: *15 Days*. Mediation shall be completed no later than thirty (30) days prior to the trial date. Jury Trial is set for 9/17/2007 at 9:00 AM before Hon. Thomas S. Zilly. Joinder of Parties due by 5/15/2006; Amended Pleadings due by 3/21/2007; Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 3/21/2007; Motions due by 4/20/2007; Discovery completed by 5/21/2007; Dispositive motions due by 6/19/2007; Settlement conference to be held by 7/19/2007; 39.1 mediation to be completed by 8/20/2007; Motions in Limine due by 8/20/2007; Pretrial Order due by 9/5/2007; Pretrial Conference set for 9/7/2007 at 3:00 PM before Hon. Thomas S. Zilly. Trial briefs to be submitted by 9/12/2007; Proposed voir dire/jury instructions due by 9/12/2007; by Judge Thomas S. Zilly. (GG, )

Docket Text: JUDGMENT IN A CIVIL CASE/DECISION BY COURT. IT IS ORDERED AND ADJUDGED; The Court GRANTS dfts' Motion for Summary Judgment, docket no. [13], on each of pltf's claims. This case is dismissed.(CL, )